In-Depth Analysis

Drafting Enforceable Separation Agreements and Releases Under the FMLA

Can you ask employees to waive FMLA rights? Depending on whether those rights are “prospective” or not, the answer might be “Yes,” at least in Eleventh Circuit. The Eleventh Circuit recently issued a decision interpreting, for the first time, the meaning of the term “prospective” as applied to the Family and Medical Leave Act’s (FMLA’s) prohibition of the waiver of prospective FMLA rights. In the past, when clients would ask about having an employee waive their FMLA rights in a separation agreement or settlement agreements, we would tell them, “Yes…but…you would arguably have to have it approved by the Department of Labor (DOL) or a court” for the release to be truly valid and not subject to being voided.